Kagan screamed at Breyer over Dobbs dissent, new book claims

FIRST ON FOX: Justice Elena Kagan’s frustrations erupted following the leak of Dobbs’ 2022 opinion, leading her to yell “so loudly” at Justice Stephen Breyer that “the wall was shaking,” observers said, according to a new book.

Conservative author and Fox News contributor Mollie Hemingway’s upcoming book, “Alito,” reviewed by Fox News Digital and scheduled for release Tuesday, details the incident and other heated moments surrounding the leak, which sparked waves of protests and death threats against the five conservative justices expected to overturn Roe that year.

The Supreme Court’s deep division on abortion was clear at the time, but the book reveals that a typically unified liberal bloc was also fractured.

Hemingway wrote that Kagan, an Obama appointee, angrily confronted Breyer, a Clinton appointee, in May 2022 behind closed doors after at least one justice, Samuel Alito, asked his liberal colleagues to speed up the writing of their dissent due to security threats. Breyer was very likely to agree to Alito’s request, Hemingway wrote.

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Justice Elena Kagan and retired Justice Stephen Breyer (Erin Schaff, Evan Vucci-Pool/Getty Images)

“While he did not say he would accommodate judges whose lives were in danger by dissenting, [Breyer] was the member of the liberal bloc most willing to do so,” Hemingway wrote. “Fiercely liberal in his jurisprudence and profoundly in disagreement with the majority decision, he was nevertheless a gentleman and a friend to all members of the Court. Kagan protested to Breyer for not adapting to the majority, shouting so loudly, observers noted, that the “wall was shaking.”

Fox News Digital has reached out to Breyer’s representatives as well as the Supreme Court press office for comment on the book.

Security threats at the time were severe, as pro-abortion protesters frequently showed up at the homes of conservative judges. Shortly after the leak, Attorney General Merrick Garland ordered the U.S. Marshals Service to provide full-time security for all judges, but drew criticism because authorities failed to arrest protesters despite a law that prohibits “picketing or marching” near a federal judge’s home to influence a court decision.

In June 2022, before the Supreme Court issued its decision, a suspect armed with a gun, a knife and burglary tools was arrested near the home of Justice Brett Kavanaugh. Nicholas Roske, now known as Sophie, later pleaded guilty to attempted murder of a Supreme Court justice and received a controversial eight-year prison sentence, which the Justice Department appealed.

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Supreme Court Justice Samuel Alito. (Erin Schaff/The New York Times via AP)

“As the protests continued, the Alitos were moved to a secure location,” Hemingway wrote. “Judge Barrett had to don a bulletproof vest in front of her children, most of whom still lived at home.”

Kagan’s controversial interaction with Breyer, who was set to retire in June 2022, came after a conference meeting on May 12, according to the book. Only the nine justices attend conference meetings, which are held periodically. Hemingway, who wrote the book based on interviews with the justices and dozens of others, said that at this point the majority opinion had been ready for months and only the dissents were pending.

Hemingway did not name the judges she interviewed because they were speaking in the background, but she told Fox News Digital that she had spoken with most of them.

“Alito asked the dissidents to make finalizing their differences their priority because delaying the decision posed a security threat,” Hemingway wrote. “Abortion supporters had an incentive to kill one or more judges in the majority to change the outcome. Dissenters objected. [Justice Neil] Gorsuch spoke, asking for a date by which they could be completed. They didn’t want to give a date.”

Fox News contributor Mollie Hemingway during her appearance on Fox News. (Fox News Channel)

The landmark opinion, overturning Roe 5-4 and upholding a Mississippi law 6-3 banning most abortions after 15 weeks of pregnancy, was released on June 24, 2022. A New York Times investigative report detailed an internal effort led by Chief Justice John Roberts, the only conservative to oppose dismantling Roe, and Breyer to oust a conservative in the months leading up to the decision. Breyer had been eyeing Justice Brett Kavanaugh, the outlet reported.

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Hemingway’s book sheds new light on these internal deliberations, which took place against the backdrop of increased polarization during the decades of struggle for Roe.

“Everyone knew that this leak posed a serious risk to the safety of judges. Since decisions only take effect after being officially handed down by the court, the death of a judge before then could change the outcome. The threat of assassination has increased significantly.”

The Supreme Court’s draft opinion, authored by Alito, was published May 2 in Politico, representing a blatant violation of the high court’s rules. The identity of the fugitive remains unknown to this day.

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“In the following weeks, hundreds of pregnancy centers, churches, and pro-life organizations would be vandalized, some even burned,” Hemingway wrote of the fallout.